NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JON CHARLES BEYER; SHELLEY 

BEYER, 

Plaintiffs-Appellants, 

 v. 

BANK OF AMERICA, N.A.; et al., 

Defendants-Appellees.

No. 15-35586 

D.C. No. 3:10-cv-00523-MO 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, Chief Judge, Presiding

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

Jon Charles Beyer and Shelley Beyer appeal pro se from the district court’s 

judgment dismissing their diversity action arising from foreclosure proceedings 

and denying them leave to amend. We have jurisdiction pursuant to 28 U.S.C. §

1291. We review de novo a dismissal for lack of subject matter jurisdiction. Chen 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

AUG 14 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 15-35586 

v. Allstate Ins. Co., 819 F.3d 1136, 1141 (9th Cir. 2016). We affirm.

The district court properly dismissed as moot the Beyers’ claims arising 

from appellees’ non-judicial foreclosure, because, as appellees concede, no 

foreclosure proceedings are currently pending against the Beyers’ home. See Or. 

Rev. Stat. § 86.782(2)(a) (nonjudicial foreclosure sale may be postponed for not 

more than 180 days); Arizonans for Official English v. Arizona, 520 U.S. 43, 67

(1997) (to qualify as a case fit for federal court adjudication, an actual controversy 

must be extant at all stages of review). 

Contrary to the Beyers’ contention, the Beyers do not state a claim for 

damages in connection with the September 24, 2010 notice of default. See 

Georgetown Realty, Inc. v. Home Ins. Co., 831 P.2d 7, 12 (Or. 1992) (en banc) (“If 

the plaintiff’s claim is based solely on a breach of a provision in the contract, 

which itself spells out the party’s obligation, then the remedy normally will be only 

in contract . . . .”); MacLean & Assoc., Inc. v. Am. Guar. Life Ins. Co., 736 P.2d 

586, 592 (Or. Ct. App. 1987) (“In order to recover damages for breach of contract, 

the party seeking to recover must prove that it has substantially performed its own 

obligations under the contract.” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion by denying the Beyers leave to 

amend their first amended complaint because amendment would be futile. See 

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)
3 15-35586 

(setting forth standard of review); Uptown Heights Assoc. Ltd. P’ship v. Seafirst 

Corp., 891 P.2d 639, 647 (Or. 1995) (en banc) (elements of tortious interference 

with economic relations); Webb v. Clark, 546 P.2d 1078, 1080 (Or. 1976) (en 

banc) (elements of actionable fraud); Slover v. Or. State Bd. of Clinical Soc.

Workers, 927 P.2d 1098, 1101 (Or. Ct. App. 1996) (elements of breach of 

contract). 

We do not consider claims raised for the first time on appeal. See Smith v. 

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

AFFIRMED.